Take Two: Commission Issues New Modified Emergency Covid-19 Rule for First Responders and Front-Line Workers
On April 13, 2020, the Illinois Workers’ Compensation Commission created an emergency amendment to Rule 9030.70, expanding the Commission’s Rules of Evidence to include a rebuttable presumption for first responders and front-line workers exposed to COVID-19. The Illinois Administrative Procedure Act (IAPA) allows the use of emergency rulemaking in situations involving a “threat to the public interest, safety or welfare” with the emergency rules going into effect immediately or up to 10 days after filing with the Secretary of State.
The April 13, 2020 emergency rule was not filed with the Secretary of State and required modifications according to the Commission. As a result, the Commission passed a new modified emergency rule expanding the Commission’s Rules of Evidence, which will become effective on April 16, 2020. IAPA provides that emergency rules are in effect for no more than 150 days. This new emergency rule will replace the initial rule from April 13, 2020.
WHAT DOES THIS NEW EMERGENCY RULE SAY?
Generally, the new modified rule is a more detailed version of the emergency rule created on April 13, 2020. In any proceeding before the Commission in which the petitioner is a COVID-19 First Responder or Front-Line Worker as defined in Section (a)(2), if the worker’s injury, occupational disease, or period of incapacity resulted from exposure to the COVID-19 virus, the exposure will be rebuttably presumed to have arisen out of and in the course of employment. Further, the exposure will be rebuttably presumed to be causally connected to the hazards or exposure of the first responder’s/front line worker’s employment.
The initial emergency rule only discussed a worker’s injury or period of incapacity resulting from exposure to COVID-10 virus, while the new modified rule also adds “occupational disease” resulting from exposure to the COVID-19 virus as part of the rebuttable presumption.
WHICH PERIODS OF EXPOSURE WILL BE COVERED BY THIS EMERGENCY RULE?
Section (a)(1) of the new modified emergency rule mentions that it includes any exposure to the COVID-19 virus which occurred during the Gubernatorial Disaster Proclamation 2020-38 and any subsequent COVID-19 disaster proclamations. This is a rule of evidence that will apply to trials from April 16, 2020 and 150 days thereafter. This presumption will not apply to trials prior to April 16, 2020, but will likely apply to dates of accident or exposure prior to the change in the rule.
WHO IS COVERED ACCORDING TO SECTION (a)(2) OF THIS NEW EMERGENCY RULE?
The Commission claims this modified emergency rule has been “narrowly written” to only apply to first responders or essential front-line workers. Section (a)(2) of the rule outlines an extensive list of workers covered by the rule.
This list includes police, fire personnel, emergency medical technicians, or paramedics, as well as all individuals employed and considered as first responders, health care providers engaged in patient care, corrections officers, and the “crucial” personnel identified under Section 1 Parts 7, 8, 9, 10, 11, and 12 of Governor Pritzker’s Executive Order 2020-10. The Executive Order encompasses a long list of employees including gas station attendants, attorneys, media, hardware and supply store employees, grocery store employees, hotel workers, restaurant workers (who provide food for off-premises consumption), cannabis production workers, financial institutions, critical trades and professional services. The rule does not define who is “crucial” nor do any of the cited Orders.
WHY WAS THIS NEW EMERGENCY RULE CREATED?
The Commission now explains that, without the passage of this new modified emergency rule, employees may be put in the “untenable” position of trying to balance their need to earn a paycheck to support their family against making the correct decision to miss work to self-isolate and self-quarantine. The Commission asserts that without this rule, the employee may make the decision to continue working, which may then create an even more dire hazard in this State.
Further, the Commission states that there are employees who are needed as first responders or front-line workers, yet they may temporarily withdraw from the workforce out of fear of contracting the virus and be uncertain about whether they will be afforded the protections of the Workers’ Compensation Act. In other words, this emergency rule is there to offer those “crucial” workers reassurance that they no longer have the burden of proving exposure. The Commission then issued a disclaimer of sorts, stating that this emergency rule does not guarantee or assure an award of benefits to an individual who suspects he or she contracted COVID-19 or self-isolates and self-quarantines due to such alleged or suspected exposure. Not much of a reassurance, but it leaves open the door for a TTD award for someone who never contracted the virus.
ONGOING CONCERNS FOR EMPLOYERS
- The new emergency rule effectively changes the presumptions in the WC and OD Acts, under the guise of a rule of evidence. This type of change typically requires legislative action and is not allowed solely through administrative rulemaking.
- The presumption still applies to an overly broad list of employees, some of whom arguably would be less likely to be exposed in their occupations and possibly includes stay-at-home workers who arguably do not face an increased risk.
- The modified rule still goes beyond traditional workers’ compensation injuries, applying the presumption not only to workers who sustain injuries or exposure to occupational diseases, but also to those who simply experience a period of incapacity after exposure. This could apply to furloughed workers who never actually contract the disease. This raises the question of whether benefits for these workers would be covered under traditional workers’ compensation insurance policies since most policies require actual injury by accident or disease to trigger coverage.
We will continue to keep you advised of any developments. This change in law highlights the importance of adhering to good claims procedures so that any evidence of a “rebuttable presumption” may be discovered and noted. We also will keep you advised of any legal challenges or other Executive, Legislative, or Administrative developments.